Two unlawfully present Honduran nationals, Anyi Artica-Romero and Milton Noel Romero were sentenced to 18 months in federal prison and 14 months (time served), respectively, for conspiracy to commit wire fraud for their roles in a scheme that created shell companies to mask the unauthorized employment of workers in the construction industry. Additionally, the defendants were also ordered to forfeit more than $800,000 in illegal proceeds from the scheme and pay more than $31,000 in restitution.

According to court documents, the defendants facilitated the illegal employment of unlawfully present foreign nationals in the construction industry. Construction contractors and subcontractors entered into agreements with shell companies controlled by the defendants to provide workers, most of whom were undocumented aliens, for the contractors and subcontractors. By obtaining and paying the workers through the shell companies, the contractors and subcontractors could disclaim responsibility for ensuring the workers were legally authorized to work in the U.S., state and federal payroll taxes were paid and workers compensation insurance was provided.

After creating the shell companies, the defendants applied for workers compensation insurance policies covering a period from September 2015 through July 2017. The defendants represented in the applications that the policies would cover up to 19 employees with estimated annual payrolls of no more than $410,800. The insurance companies issued policies based on this fraudulent information in the applications, which the defendants then “rented” to numerous construction contractors and subcontractors employing hundreds of workers with more than $20 million in annual payroll as purported proof of workers compensation insurance required under Florida law.

The contractors and subcontractors wrote payroll checks to the shell companies for work performed by the workers. The defendants cashed the checks and distributed the cash to construction crew leaders, who then paid the workers in cash. No state or federal payroll taxes were deducted from the workers’ pay, in violation of Florida and federal law.

The defendants kept approximately four percent of each payroll check as a “rental” fee. During the period of the scheme, they cashed more than $20 million in payroll checks, with the four percent fee totaling more than $800,000 in illegal proceeds.

The Department of Justice (DOJ) and U.S. Citizenship and Immigration Services (USCIS) have agreed on a Memorandum of Understanding (MOU) that expands their collaboration to better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States.

The MOU will increase the ability of the agencies to share information and help identify, investigate, and prosecute employers who may be discriminating against U.S. workers and/or violating immigration laws. In 2010, USCIS and the Justice Department’s Civil Rights Division entered into an ongoing partnership to share information about E-Verify misuse and combat employment discrimination, and this MOU expands upon the two agencies’ existing partnership.

To advance the goals of the Buy American and Hire American Executive Order, in 2017, the Civil Rights Division of the DOJ launched the Protecting U.S. Workers Initiative, which is aimed at targeting, investigating, and taking enforcement actions against companies that discriminate against U.S. workers in favor of foreign visa workers. Under this Initiative, the Civil Rights Division has opened dozens of investigations, filed one lawsuit, and reached settlement agreements with two employers.

Asplundh Tree Experts has agreed to pay $95 million concerning the employment of undocumented workers. This is the largest monetary penalty ever levied by Immigration and Customs Enforcement (ICE) in an immigration case. Based on Asplundh Tree Experts Company’s guilty plea in federal court, the Court imposed a sentence of $80 million forfeiture money judgment. Pursuant to a separate Civil Settlement Agreement, Asplundh will pay an additional $15 million dollars to satisfy civil claims arising out of their failure to comply with immigration law.

Asplundh, an industry leader in tree trimming and brush clearance for power and gas lines, headquartered in Willow Grove, Pennsylvania, pleaded guilty to unlawfully employing aliens, regarding a scheme in which the highest levels of Asplundh management remained willfully blind while lower level managers hired and rehired employees they knew to be ineligible to work in the United States.

Court documents show the hiring system was developed after a 2009 I-9 inspection by Homeland Security Investigations (HSI), which revealed Asplundh employed workers who were ineligible to work in the country. Asplundh fired at least 100 of them, but a regional manager, Larry Gauger, later instructed supervisors to hire some of them back by accepting fake forms of identification, including permanent resident cards or Social Security cards. Gauger knew the dismissed employees within his region were being re-hired under different and false names and false identity documentation and encouraged his supervisors and general foreman to continue this practice.

Thereafter, the investigation revealed Asplundh decentralized its hiring so Sponsors (the highest levels of management) could remain willfully blind while Supervisors and General Foremen (2nd and 3rd level supervisors) hired ineligible workers, including unauthorized aliens, in the field. Hiring was by word of mouth referrals rather than through any systematic application process. This manner of hiring enabled Supervisors and General Foremen to hire a work force that was readily available. This decentralized model tacitly perpetuated fraudulent hiring practices that, in turn, maximized productivity and profit.

The amount of the $80 million forfeiture was determined by a review of Asplundh’s payroll, which showed the employment of thousands of undocumented immigrants over four years. Asplundh had a workforce of approximately 30,000. Investigators determined that Asplundh used the fraudulent techniques to hire at least 10 percent of its workforce — or about 3,000 to 4,000 workers — in a four-year span, and earned $800 million in profits during that stretch. The presiding Judge, Josh A. Davison, said the idea of a forfeiture is to seize illegal gains, so the government reasoned that the illegally hired 10 percent of the workforce generated 10 percent of the profits. Thus, 10% of $80 million is $80 million.

Prior to the company’s guilty plea, regional manager Gauger has pleaded guilty and is scheduled to be sentenced in October 2017, along with two supervisors, Juan Rodriguez and Jude Solis, who pleaded guilty in the same conspiracy.

This case is another example of the U.S. government cracking down on employers who violate the immigration laws.

As many immigration attorneys had anticipated, L-1B site visits by the USCIS and its Fraud Detection and National Security (FDNS) officers have recently begun. This appears to be another example of the Trump administration’s extreme vetting. These site visits have occurred while companies have pending L-1B visa extensions with the USCIS.

An L-1B visa is a transfer of an employee with specialized knowledge from a foreign office of the company or its affiliate or subsidiary to a United States facility. It is dissimilar to the H-1B visa in that it is not subject to a cap nor any salary restrictions. But, it can only be utilized by multinational corporations. It is like an H-1B visa in that it is a vehicle for a company to employ a skilled foreign worker on a non-immigrant or temporary visa. An L-1B visa holder is eligible to be employed for up to five years.

Historically, site visits have taken place on H-1B visas, especially where the H-1B visa holder was employed off-site. As a result of Trump’s April 2017 Executive Order “Buy American and Hire American”, the administration has stated it will use a “more targeted approach” to H-1B visits – meaning more site visits where there is possible fraud or abuse in the visa application.

Some of the pending legislation in Congress to reform or change the H-1B visa also includes changes to the L-1B visa. Senator Chuck Grassley (R – Iowa) has made the L-1B visa a target for immigration reform. Thus, this seems in keeping with the administration and their friends in Congress grouping H-1B visas with L-1B visas.

At this point, it is difficult to determine how widespread the L-1B site visits are; however, the fact that there are L-1B site visits while a petition is pending is a change from prior administrations. I would anticipate these L-1B site visits to increase as this appears to be part of the Trump administration’s extreme vetting. I will keep you updated as more information becomes available.

IT companies, SCM Data, Inc., MMC Systems, Inc., their owner, Sowrabh Sharma, and an employee, Shikha Mohta, have been indicted for fraud in federal court, accused of conspiring to lie on applications for H-1B visas for temporary immigrant employees. The falsehoods were promises of full-time, in-house salaried jobs to foreign workers when the truth is they contracted the employees out, did not always pay them their wages and falsified pay stubs to cover-up their unlawful actions.

The defendants “benched” employees, meaning they did not pay them when there was not work for them, which is a violation of the law, and created false pay stubs to cover up their actions. According to the indictment, the workers were pressured into paying Sharma to create the fake documents that indicated they were getting full-time wages, and were told if they did not do this, they would not be allowed to stay in the United States.

The visa fraud and obstruction of justice conspiracy charge carries a potential penalty of five years in prison and a $250,000 fine. The alien harboring conspiracy charge carries a potential penalty of 10 years in prison and a $250,000 fine.

Stay tuned for further developments in this matter – guilty pleas, trial, etc.